Friday, February 10, 2017

Ithaca DWI Lawyer: Prior Out of State DUIs Can Promote Felony DWI

So Many Highways and Roadways?
Sometimes words can carry a dual meaning. A promotion is usually something good, as in "I just got promoted to manager." But sometimes promotions can be bad, as in "the DA is using my prior DUI to promote this DWI to a felony level DWI. Going up the ladder from lowest level in New York is violation to misdemeanor to felony. In New York State the legal term for felony promotion is "Enhancement" as in my misdemeanor DWI got enhanced to a felony class E level DWI.

What if your prior DUI or OUI or OWI is from another state? Can they enhance your current New York DWI to a felony DWI based on that prior DUI?

The Key to New York DWI Felony Enhancement is Substantial Similarity

Let's start off with understanding that in New York State any DWI, ADWI (aggravated DWI), DWAI drugs or even DWAI drug plus alcohol combo charged as a misdemeanor can be enhanced to a felony if there is A NYS prior (conviction) within 10 years of this arrest date:

The DWI be charged as a felony, pursuant to an allegation of a prior conviction of Vehicle and Traffic Law § 1192 (1), (2), (3) or (4) within the preceding 10 years per Vehicle and Traffic Law § 1193 (1) (c)

If YOU have any prior Out-Of- State DUI, OUI, DWI, ADWI (aggravated DWI), DWAI drugs or even DWAI drug plus alcohol combo then it can enhance your current NYS DWI to a felony if the prior (conviction) was within 10 years AND it is substantially similar to the NYS DWI statute (law). Many states laws are similar, like PA, MA, CT, and NJ.

This is because of the Full Faith and Credit Clause of the Constitution:

Full Faith & Credit—Enhancing New York DWI with Out-of-State Convictions
Article IV, Section 1 of the United States Constitution provides that: “Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” Therefore, a DWI conviction from one state must be recognized in another state.  
We need to always compare the out of state DUI as if that behavior had occurred in NYS would it be a misdemeanor or felony level offense in NYS as well.  

NOTE: If the prior first was in PA but you received ARD in PA then that generally cannot be used for enhancement to a felony in NYS because it is likely expunged from your record as a conviction for enhancement purposes.

A Class E Felony Level Punishment will Also Come with a Second DUI/DWI within 10 years

The potential penalties for a New York Class E felony DWI conviction are serious:

  • Up to four years in state prison as opposed to one year in jail for a misdemeanor
  • A fine no less than $1,000 and up to $5,000
  • Five years probation (close monitoring, drug/alcohol testing, and supervision)
  • A one year or more license revocation
  • Attendance at a Victim Impact Panel
  • $520 surcharge and a three year DMV assessment totaling $750
  • Installation an ignition interlock device for term of probation (five years)
Have your DWI evaluated throughly based upon any prior DUI/OUI/OWI/DWI that happened within your lifetime of driving. Timing is crucial in these types of cases.